Forced exchange of apartment

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How does a forced exchange of municipal housing occur through the court? Does this happen often? According to official statistics, about 20% of the total housing stock in Russia has not yet been privatized, that is, it belongs to the state.

A considerable part of these residential premises are provided to needy citizens by the state under social rental agreements. In this case, housing is municipal and the principles of owning it are quite different from the same actions with private property.

However, the actual owners - residents registered in a municipal apartment or house - are not deprived of the right to exchange living space under conditions that will be convenient for all of them. As a rule, such a procedure does not suit at least one of the owners of the described housing, so the decision to carry out the exchange is made by a judicial authority.

We will talk about this event in more detail in the material below.

Basic legal provisions

The main legislative act that will help you understand the issues of housing exchange is the Housing Code of the Russian Federation

When considering the forced exchange of municipal housing through the court, it is important to turn to the main legislative acts in our country, which fully cover this topic.

All issues relating to residential premises and transactions over them are resolved through consideration of the Housing Code (LC) of the Russian Federation.

In the topic we are considering, all the provisions of the code are important, which regulate the basic concepts, procedure and process of providing this type of housing and exchanging it.

First of all, it is important to define the concept of “municipal housing”. In accordance with Article 49 of the Housing Code of the Russian Federation, such housing is a housing facility provided to needy citizens from the local municipality (region, territory, region, etc.) for living.

The use of an apartment or house received from the state must comply with all the terms of the social rental agreement and the legislative rules specified in the Housing Code of the Russian Federation (Chapters 7, 8, 8.1, 8.2).

According to the same code, the tenant (the actual owner of the housing under the contract) has the right to exchange living space. But only if all other tenants and the landlord (the municipality) who provided him with housing agree to this. The main legislative provisions for this type of exchange are presented in articles 72 to 75 of the RF Housing Code.

Difficulties in exchanging municipal living space

Summarizing the information presented in the legislative act, we can highlight the following:

• The exchange of housing provided under a social tenancy agreement can only be carried out with the written consent of all tenants of the housing, the landlord and the guardianship authorities (if there are minor tenants). In other cases, an exchange can only be achieved through court.
• In the exchange procedure there is no limit on the number of participants participating in it.
• The exchange of municipal living space can be carried out either peacefully or through the courts.
• A housing exchange can only be carried out if, after its completion, the rights of none of the tenants are violated. Otherwise, the exchange may be declared invalid in court.
• In a number of situations specified in Article 73 of the Housing Code of the Russian Federation, the exchange of municipal living space is not allowed.
• Tenants have every right to refuse to exchange housing. But their refusal must be justified. Otherwise, it may be appealed in court.
• The exchange agreement is concluded in writing and in compliance with all legal and legislative nuances of this procedure.
• An agreement concluded in violation of the rights of employers, the provisions of the Civil Code of the Russian Federation and the Housing Code of the Russian Federation will be declared invalid in court. After the agreement is declared invalid, all tenants of municipal housing under the social contract will be relocated to the originally provided housing. The culprit, who through his unlawful actions provoked the invalidity of the contract, is obliged to bear some responsibility both to the legislator and to other participants in the exchange transaction.

Do not forget that each individual case may require a more in-depth reference to the legislation of the Russian Federation, so sometimes it is impossible to do without the help of a professional lawyer. Above are only the main legislative provisions that relate to the exchange of municipal living space.

Forced exchange of a municipal apartment through the court

The reasons for the exchange of municipally owned housing are considered to be mainly domestic problems caused by the inability to live in the same apartment (house). But even under such circumstances, sometimes one of the co-owners does not want to divide the available square meters through exchange.

What is a forced exchange of an apartment? Watch the video:

Basic rules of law

Therefore, a refusal of this kind may serve as a prerequisite for filing a claim for a forced exchange.

This provision is regulated by:

1. Part 3 of Article 72 of the Housing Code of the Russian Federation, which states that if one of the parties disagrees with the exchange of housing used under a social tenancy agreement, then this issue will be resolved in court.
2. Part 4 of Article 72 of the Housing Code of the Russian Federation, if there are minor children in the designated living space, therefore such participants as guardianship and trusteeship authorities are mandatory in this process.
3. Resolution of the Plenum of the Supreme Court of the Russian Federation No. 14 and in its paragraph No. 34. The fact here is that courts, when considering cases regarding forced exchange, must take into account not only the justifications of the plaintiff, but the persons who are the defendants. That is, it is imperative to take their interests into account.

Article 72. The right to exchange residential premises provided under social tenancy agreements

1. The tenant of residential premises under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, including temporarily absent members of his family, has the right to exchange the residential premises occupied by them for residential premises provided under a social tenancy agreement to another to the employer.

2. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises they occupy under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.

3. If an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.

4. The exchange of residential premises that are provided under social tenancy agreements and in which minors, incompetent or partially capable citizens who are members of the families of the tenants of these residential premises live, is allowed with the prior consent of the guardianship and trusteeship authorities. The guardianship and trusteeship authorities refuse to give such consent if the exchange of residential premises provided under social tenancy agreements violates the rights or legitimate interests of these persons. Decisions of the guardianship and trusteeship authorities to give consent to the exchange of living quarters or to refuse to give such consent are made in writing and are provided to applicants within fourteen working days from the date they submit the relevant applications. Providing applicants with decisions of guardianship and trusteeship authorities on giving consent to the exchange of living quarters or on refusing to give such consent can be carried out through a multifunctional center.

5. The exchange of residential premises provided under social tenancy agreements can be made between citizens living in residential premises located both in the same and in different settlements on the territory of the Russian Federation. The exchange of residential premises is carried out without limiting the number of participants, subject to the requirements of Part 1 of Article 70 of this Code.

But it is worth noting that citizens who have property rights to housing in accordance with the Civil Code cannot be evicted from their homes by anyone. Such a decision can only be made by personal consent, or by a court decision.

Claim form and required documents

How to file a claim in court for forced size of an apartment?

Based on the fact that today’s material examines in detail the procedure for the forced exchange of a municipal apartment through the court, it would not be superfluous to consider the correct form of the claim and the necessary documents for filing with the court.

It is worth understanding that the legal literacy of the drafted claim largely determines whether you will be able to achieve your goals in the trial.

A correct statement of claim must necessarily contain the following information:

• Full name, address, year of birth and contact details of the plaintiff (the employer who initiates the exchange);
• Full name, address, year of birth and contact details of the defendant or defendants (employers who do not agree to the exchange);
• information about marriage or its dissolution (if there is one between tenants);
• information about children (if any among employers);
• address of housing and period of residence in it;
• description of housing (apartment or private house, floor, rooms, condition, etc.);
• housing stock;
• the plaintiff's arguments indicating the need for forced exchange;
• offering exchange options;
• information that the defendant or defendants did not voluntarily agree to make the exchange;
• request to a judicial authority to carry out a forced exchange.

In the process of asserting your rights in court, you may need the following documents:

• a copy of written consent from the landlord to carry out the exchange;
• consent of the local executive or administrative government agency for intercity exchange (if deciding to move to another locality and get municipal living space there);
• a copy of the title document for the home;
• certificate of registration from the place of residence;
• certificate of family composition (if the employers are a family);
• a copy of the divorce or marriage certificate (if available);
• a written application for refusal or consent to exchange from all tenants of the described housing;
• receipts for payment of all necessary state fees.

By adhering to the above rules for drawing up a claim and collecting the necessary documentation, you can significantly increase the chances of a successful outcome of the legal proceedings.

In what cases will the court refuse an exchange?

What can prevent you from carrying out a forced exchange of living space?

Forced exchange of housing through the court is a rather complex legal procedure. Even after collecting all the necessary documents and competently drafting a claim, the employer cannot guarantee himself success in achieving his goals in the lawsuit.

This is due to the potential presence of any factors that may force the court to refuse the exchange.

One part of them is enshrined in the Housing Code of the Russian Federation, and the other is formed based on the individual characteristics of each case. Taking into account the presence of such factors, the judge makes a final verdict.

Questions for the company's lawyers

Forced exchange of residential premises in another area

Alexei

Section: forced exchange of residential premises

Good afternoon. My wife and I are divorced and have no strength to live together. There is an option to exchange an apartment, but in a different region. Is it allowed?

Lawyers for forced exchange of housing: Alexey, the law allows for forced exchange of an apartment, even if the residential premises are located in different regions. The court will proceed from the private circumstances and agreement of the parties.

Sanitary standards for forced exchange of residential premises

Ivan Vasilievich

Section: forced exchange of residential premises

How are sanitary standards assessed during the forced exchange of residential premises? Didn't find anything on the Internet

Lawyers for forced exchange of housing: Ivan Vasilyevich, provided that the forced exchange affects the interests of minors, the guardianship and trusteeship authorities independently determine the compliance of the residential premises with sanitary standards

Nuances of the event

Nuances that must be taken into account when preparing a claim for forced exchange

The entire process of exchanging municipal housing is quite confusing and difficult to implement.

Even after reviewing and carefully studying the material presented above, not every person will be able to fully understand the essence of this procedure. One way or another, you will have to deal with the legislative and legal aspects of the exchange.

To simplify the process of understanding all the intricacies of the exchange of municipal housing, our resource has highlighted a number of important nuances of this event for consideration:

1. Any tenant or, more simply put, a registered tenant has every right to initiate an exchange.
2. Do not forget that it is necessary to carry out an exchange through the court only if the remaining employers or part of them have refused the voluntary procedure and the event is justified on your part.
3. Before going to court to file a lawsuit, be sure to consult with a legal professional about the advisability of such a practice in your case.
4. Draw up a statement of claim specifying all the details of your situation and in accordance with the form presented earlier. Also, do not forget to take care of collecting some documents.
5. When deciding to go to court, remember that in the process of resolving controversial issues you will have to incur some financial expenses. You will definitely have to spend money on paying the necessary state fees, obtaining certificates and processing other documents. In addition, litigants often spend considerable amounts of money on the assistance of lawyers and attorneys.
6. Even if you achieve a forced exchange of the described housing in court, do not rush to rejoice. The fact is that not in all regions of the country the municipal housing stock is rich enough. As a result, it can be very difficult to find suitable housing for exchange. At this stage, you need to be prepared for a long and persistent search for housing for exchange that will satisfy all the necessary requirements.

As you can see, litigation on issues of forced exchange of municipal housing is not an easy matter. During the course of a trial, new problems may arise, making life more difficult for those involved. Is it worth it or not - decide for yourself.

When resolving such issues through the court, do not forget to use the material presented above and contact professionals for help.

You can learn more about exchanging an apartment by watching the video:

See also Phone numbers for consultation January 16, 2021 kasjanenko 842

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Discussion: there is 1 comment

1. Ivan says:
   09.20.2020 at 19:24

   In general, is the option now realistic that was common in those days when almost all housing was municipal property: people from different cities come to an agreement and simply exchange their apartments without any courts?

   Answer

Judicial practice: forced exchange of municipal housing

The law does not prohibit tenants from carrying out the procedure for exchanging a non-privatized apartment. But in reality the issue is not so easily resolved. Therefore, there are not many such deals. Art. 72 of the Housing Code of the Russian Federation contains information on the rules for the exchange of municipal housing. This is the basic law relied upon in this case. It reads:

Exchange of municipal housing is not a simple procedure. Of the total housing stock in the Russian Federation, only 20% of apartments are municipally owned. Therefore, the selection of a suitable option usually takes a long time, because you not only need to find an apartment, but also negotiate a deal with its tenant.